Opposition — Kenney v. United States

No. 80-1432 | tn

ALENANO i ¢y

In the Supreme Court of the Unithr-Stafes

OCTOBER TERM, 1980

ROBERT KENNEY, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

WapDE H. McCree, Jr.

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

FRANCIS J. MARTIN

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether a Drug Enforcement Agent and later the pros-

ecutor abridged petitioner’s Sixth Amendment right to

counsel by conducting pre-indictment interviews with peti-

tioner, where petitioner was admonished prior to each

interview that he could have an attorney’s help during

questioning.

(1)

TABLE OF CONTENTS

Page

Opinion below ....... cece cece eee eee eeeeeeeeeees I

errr rrr Tr eT rere rT terre I

rrr rere eT ret rr Ter ere er I

ATBUMENE 2... cccccccccccccrcccecccecesccceseees 3

errr rrr Tr rere rre ry Te ere 8

TABLE OF AUTHORITIES

Cases:

Aiken v. United States, cert. denied,

No. 80-1096 (March 23, 1981) ........eeeeees 7

Brewer v. Williams, 430 U.S. 387) «2... eee eee 6,7

Dillingham v. United States, 423 U.S. 64 ...... 7.8

Government of the Canal Zone v. Sierra,

2 ae | wPeeeeer TTT ererrrrrr Terre rer or 7

Johnson v. Zerbst, 304 U.S. 458 2... eee eee ees 6

Massiah v. United States, 377 U.S.

Mee cUaveuneeidss ses eu hey eee keen tara 4.7.8

United States v. Brown, 569 F. 2d 236 .......4+: 7

United States v. Duvall, 537 F. 2d 15,

cert. denied, 426 U.S. 950 ............06- 3.4/7

United States v. Marion, 404 U.S. 307 ......+45- 8

United States v. Mohabir, 624 F. 2d 1140 ....... 7

United States v. Woods, 613 F. 2d 629,

cert. denied, 446 U.S. 920 ......cceeeeeeeeees 7

United States v. Zazzara, 626 F. 2d 135 ......... 7

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Page

Constitution, statutes and rules:

United States Constitution:

Fifth Amendment .......--0+eeeeeeeeee 4.6.8

Sixth Amendment ...........--++++ 3.4.6. 7.8

21 U.S.C. B4l (al) 2. ccc cece cece eee e eee eeees 2

OO OD coin cckcuverestaseersbannseues |

Fed. R. Crim. P. :

ee os cadeeentesns Stavseaseewens 4.7

SS Ce Perr ere eT rT 6

SS Pree r eee rere err Ter te tL. 6

In the Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-1432

ROBERT KENNEY, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. A) is

unreported.

JURISDICTION

The judgment of the court of appeals was entered on

Ociober 29, 1980 (Pet. App. A). A timely petition for

rehearing was denied on December 23, 1980 (Pet. App. C).

The petition for a writ of certiorari was filed on February

20, 1981. The jurisdiction of the Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Southern District of New York, petitioner was con-

victed of conspiring to distribute heroin, in violation of 21

U.S.C. 846. and of distributing, and possessing with intent

2

to distribute, one ounce of heroin, in violation of 21 U.S.C.

841(a)(1). Petitioner was sentenced to 15 months’ impris-

onment, to be followed by a three-year term of special

parole. The court of appeals affirmed (Pet. App. A).

1. The evidence at trial showed that in early March 1979

Victor Herrera, a paid informant for the Drug Enforcement

Administration, encountered petitioner at a Manhattan

night club (Tr. 30).' Petitioner, who had known Herrera

since 1974, asked him if he would be interested in engaging

in some cocaine business. Thereafter, Herrera and peti-

tioner went to petitioner’s apartment, where Herrera told

petitioner he was interested in heroin rather than cocaine.

Petitioner stated that he had a potential heroin source and

made an unsuccessful attempt to telephone his source (Tr.

22-24, 31-33). In the days that followed, petitioner intro-

duced Herrera to his heroin source, Lincoln Stephens. Peti-

tioner later gave Herrera a small sample of heroin, provided

by Stephens, in exchange for $500 (Tr. 33-38). Petitioner

and Herrera thereafter had a number of telephone conver-

sations concerning arrangements for a larger sale of heroin

(GX 11, 12, 13). These negotiations culminated in the base-

ment of petitioner’s apartment building with the sale by

Stephens of one ounce of heroin to Herrera for $10,000 (Tr.

74-76, 223, 289-291, 345).

2. A complaint was filed and a warrant issued for peti-

tioner’s arrest on September 14, 1979 (Pet. App. D). Peti-

tioner was arrested at his home on October 22, 1979. He was

given his Miranda warnings, and he acknowledged that he

understood them (S. 9-10). While being transported to the

DEA office, petitioner told DEA agents that he was guilty

“Tr.” references are to the transcript of the trial, held May 13-20.

1980; “S.” references are to the transcript of the suppression hearing,

held May 12-13, 1980. “GX” references are to Government Exhibits.

“Tr."and “GX” references are based on those in the government's brief

in the court of appeals.

3

of conspiracy but felt he was innocent of any sale of heroin.

Petitioner stated that the heroin had come from Stephens,

that Stephens’ source was one “John” from Queens, and

that he, petitioner, could introduce the agents to several

drug dealers (S. 11). Petitioner was permitted to return

home that night upon the understanding that he would

return the next day for his initial appearance before a

magistrate (S. 12; Tr. 492-495). The next morning petitioner

met again with the agents and with an Assistant United

States Attorney. He was again given Miranda warnings,

and he again made essentially the same admissions.’ At

petitioner’s request his initial appearance was delayed for

two days to allow him to visit an elderly relative in Philadel-

phia (Tr. 495-496; S. 13-15).

Petitioner was indicted on February 14, 1980, together

with his co-defendant Lincoln Stephens (Pet. App. E). Peti-

tioner sought to suppress the statements of October 22 and

October 23, 1979, in which he admitted to being guilty of

conspiracy. The district court denied the motion (Pet. App.

B), and the statements were introduced against him at trial.

ARGUMENT

Petitioner contends (Pet. 12-23) that the district court

erred in refusing to suppress his post-arrest statements

because they were obtained in violation of his Sixth

Amendment rights. In particular, he challenges the court of

appeals’ reliance on United States v. Duvall, 537 F. 2d 15

(2d Cir.), cert. denied, 426 U.S. 950 (1976), which holds that

the Sixth Amendment right to the assistance of counsel

Petitioner was not unfamiliar with criminal procedure, having pre-

viously been arrested for armed robbery in 1945 and for bribery in 1975

(Tr. 544-545). Petitioner also acknowledged that he had learned that

Herrera was an informant, and he was expecting to be arrested (S. 69,

82-83).

4

during any government interrogation, recognized in Mas-

siah v. United States, 377 U.S. 201 (1964), does not auto-

matically attach upon an individual’s arrest pursuant to a

warrant based ona criminal complaint issued under Fed. R.

Crim. P. 3. For the reasons explained below (pages 4-7), this

is not an appropriate case in which to consider the Duval.

In any event, we believe Duvall is correct, and it does hot

conflict with any holding of this Court or of any other court

of appeals. Accordingly, review by this Court is unwarranted.

1. We note at the outset that, in the district court, peti-

tioner did not base his motion for suppression of the state-

ments here at issue on the Sixth Amendment. Rather, he

argued that he had not understood the Miranda warnings

and that the statements were coerced in violation of his

rights under the Fifth Amendment (S. 6, 121-123). The

Sixth Amendment was mentioned only as a basis for sup-

pressing similar statements made two months later, which

were not used at trial (S. 5-6, 63, 123, 131-132). Because the

government and the district court thus were not on notice of

the present Sixth Amendment claim, the government

lacked a proper opportunity to introduce proof with respect

to a waiver of Sixth Amendment rights and the district

court had no occasion to rule on the waiver question. Since

the facts underlying petitioner’s Sixth Amendment claim

were well known to him at the time of trial, his failure to

assert the claim prior to or during trial would appear to bar

its assertion on appeal. Fed. R. Crim. P. 12(f). While the

court of appeals nevertheless considered and decided the

Sixth Amendment issue (Pet. App. A), it relied ona ground

that pretermitted any decision of the waiver question.

Notwithstanding the government's initial lack of notice

concerning the Sixth Amendment issue now raised, the

evidence introduced at the suppression hearing establishes

that petitioner waived any Sixth Amendment rights he may

\

LY Me

5

have had when he gave his statements to the DEA agent

immediately following his arrest and, onthe next day, to the

prosecutor. DEA agent Sandler. whose testimony was cred-

ited by the district court (Pet. App. B), testified that he gave

petitioner his Miranda warnings, including an assurance

that petitioner could refuse to answer questions in the

absence of counsel and could have an attorney appointed

for him if he could not afford one (S. 10). Assistant United

States Attorney Stuart Baskin, whose testimony was also

credited by the district court (Pet. App. B), testified (S. 111,

116) that before beginning the interview he read petitioner a

number of rights from a printed form (S. GX 1), pausing

after each sentence to ask petitioner if he understood the

statement and to note petitioner’s response that he did. The

statements read to petitioner included the following (S. 14;

S. GX 1):

You have a right to consult an attorney and to have

that attorney present during this interview.

* * * * *

If you do not have funds to retain an attorney[,] an

attorney will be appointed to represent you[,] and you

do not have to answer any questions before this attor-

ney is appointed and you can consult with him.

* * * * *

Would you like to answer some questions? You may

pick and choose those questions you wish to answer

and you may stop at any time.

Because petitioner wished to visit an elderly relative that

evening in Philadelphia and thus did not wish to be delayed

by an appearance before the magistrate, he signed a form

titled “Waiver of Arraignment” (S. GX 2), which in three

6

separate places advised him of his right to counsel.* One

sentence stated that “I understand I have a right to consult

with counsel before signing this document waiving my

rights.” Another sentence, at the end, directly above the line

for petitioner’s signature, stated “I do not want a lawyer.”

Petitioner contended, in connection with his Fifth Amend-

ment claim, that his incriminating statements were coerced

by suggestions that he would be held on high bail if he failed

to cooperate. This claim was expressly rejected by the dis-

trict court, which found nothing in the evidence “to support

the argument of the defendant that he was coerced in order

to obtain his cooperation or to pressure him into making

some kind of confessions” or “to suggest that under the

circumstances there would have been a high bail fixed, in

fact, or that he would have had to remain in jail more than

overnight” (Pet. App. B).4

This record shows “ ‘an intentional relinquishment or

abandonment of a known right * * *’” to assistance of

counsel (Brewer v. Williams, 430 U.S. 387, 404 (1977),

quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)), on the

part of petitioner, who was familiar with criminal proce-

dures, having been twice previously convicted of serious

crimes (see note 2, supra). It thus seems clear that petition-

er’s Sixth Amendment claim would have fared no better in

3The term “Waiver of Arraignment” appears to be a misnomer.

Arraignment is a proceeding at which a defendant pleads to an indict-

ment or information. Fed. R. Crim. P. 10. The proceeding that occurs

whena defendant is arrested, either without a warrant or witha warrant

issued upon a complaint, is an “initial appearance” governed by Fed. R.

Crim. P. 5, at which the arrestee is advised of his rights and an initial bail

determination is made, but at which the arrestee is “not * * * called

upon to plead.”

4Petitioner’s suggestion (Pet. 10) that AUSA Baskin had threatened

to have him held on $150,000 bail is contradicted by Baskin’s testimony

(S. 109-110), which was credited by the district court (S. 129-130).

7

any other circuit than it did in the court below. regardless of

whether other circuits would agree with Duvall regarding

the point at which Sixth Amendment rights to counsel

attach. See, e.g., United States v. Woods, 613 F. 2d 629. 634

(6th Cir.), cert. denied, 446 U.S. 920 (1980); Government of

the Canal Zone v. Sierra, 594 F. 2d 60, 67-68 (Sth Cir.

1979); United States v. Brown, 569 F. 2d 236 (Sth Cir. 1978)

(en banc).5

2. For the reasons stated in the government’s brief in

Opposition to the petition for certiorari in Aiken v. United

States, cert. denied, No. 80-1096 (March 23, 1981) (Br. in

Opp. 5-7), an arrest made pursuant toa warrant based upon

a complaint under Fed. R. Crim. P. 3 does not mark the

commencement of a criminal prosecution for the purpose of

Massiah rights. United States v. Duvall, supra. (A copy of

our Aiken brief has been provided to petitioner’s counsel.)

We add only that United States v. Zazzara, 626 F. 2d 135.

138 (9th Cir. 1980), the sole court of appeals decision from

another circuit cited by petitioner as contrary to Duvall,

provides only dictum in support of petitioner’s argument,

since the Zazzara court found no violation of Sixth

Amendment rights. We also note that this Court’s decisions

in Brewer v. Williams, 430 U.S. 387 (1977), and Dillingham

Vv. United States, 423 U.S. 64 (1975), do not aid petitioner.

In Brewer, the interrogation at issue was preceded by the

defendant's arraignment, appointment of counsel for him.

and an agreement between his counsel and the police that he

*The waiver standard employed in these cases is less stringent than the

standard for post-indictment waivers of the right to counsel established

in United States v. Mohabir, 624 F. 2d 1140 (2d Cir. 1980). In Mohabir

the court held. in the exercise of its supervisory power, that “a valid

waiver of the Sixth Amendment right to have counsel present during

post-indictment interrogation must be preceded by a federal judicial

officer's explanation of the content and significance of this right.” 624

F. 2d at 1153.

8

was not. to be questioned in the absence of his lawyer. In

Dillingham, the Court’s reference to the arrest as the com-

mencement of prosecution was a reference to an arrest

immediately followed by the defendant’s presentation before

a magistrate for the setting of bail; as the briefs filed in that

case indicate (Memorandum for the United States in Oppo-

sition at 2. No. 74-6738, 1975 Term), bail was set and the

defendant, who had waived a preliminary hearing, was

incarcerated for over a month before making bond. Thus, in

a passage quoted from United States v. Marion, 404 U.S.

307. 320-321 (1971), the Court noted that “ ‘it is either a

formal indictment or information or else the actual re-

straints imposed by arrest and holding to answer a criminal

charge that engage the particular protections of the speedy

trial provision of the Sixth Amendment.’ ” 423 U.S. at 65

(emphasis added). There is no suggestion that in Dil-

lingham the Court was deciding the question whether an

arrest pursuant to warrant based ona complaint, without

more, would trigger Sixth Amendment rights, including

any special rights under Massiah that exceed Miranda

rights under the Fifth Amendment.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WapeE H. McCreEE, JR.

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

FRANCIS J. MARTIN

Attorney

APRIL 1981

DOJ-1981-04